State v. Don, 65616

• Decision Date: 21 April 1982
• Docket Number: No. 65616,65616
• Citation: 318 N.W.2d 801
• Parties: STATE of Iowa, Appellee, v. Edward Wayne DON, Appellant.
• Court: Iowa Supreme Court

Page 801

318 N.W.2d 801

STATE of Iowa, Appellee, v. Edward Wayne DON, Appellant.

No. 65616.

Supreme Court of Iowa.

April 21, 1982.

Rehearing Denied May 14, 1982.

Mark S. Soldat of Soldat & Braunschweig, Algona, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., Glenn M. Bradley, County Atty., and David Dutton, Asst. County Atty., for appellee.

Considered by LeGRAND, P. J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.

McCORMICK, Justice.

Defendant Edward Wayne Don appeals from his conviction by jury and sentence for first degree murder in violation of section 690.1, The Code 1975. The charge arose from the June 11, 1976, shooting death of Keota night marshal Douglas Bell. Although defendant challenges his conviction on twelve grounds, we find he has demonstrated no basis for reversal. We affirm the trial court.

The State's evidence was that officer Bell warned defendant on two separate occasions concerning traffic violations shortly after 1:00 a. m. on June 11, 1976. Subsequent to those incidents, according to the State's theory, defendant stole a red Vega automobile from a used car lot. Bell observed him speeding at about 2:30 a. m. and pursued him out of town. Defendant stopped, and Bell started to write a speeding ticket. At that point defendant was afraid Bell would discover he was driving a stolen car. He noticed Bell's holster was unlatched. He grabbed Bell's pistol and shot him with it. After emptying the gun, he reloaded and shot Bell several more times. He then kicked the officer's face with his boot. Following the killing, he drove into town and committed break-ins in an effort to construct an alibi.

At trial, defendant was represented by William Kutmus and Mark Pennington. After his conviction, on the day set for sentencing, he sought unsuccessfully to have present counsel appointed to represent him in their stead. He has been represented by his present attorney throughout the appeal.

He contends the trial court erred in requiring the case to be tried under the procedural provisions of the new criminal code, failing to appoint an investigator to assist his defense, refusing his request to attend depositions, overruling his motion to suppress boots seized in a search of his father's home, receiving the boots in evidence, allowing testimony concerning the time it would take to drive from the crime scene to Keota, overruling objections to evidence of his habit of exaggerating, permitting the State to offer prior statements of a prosecution witness, overruling his objection to testimony of a rebuttal witness who violated a sequestration order, receiving hearsay testimony, holding the evidence was sufficient for conviction of first degree murder, and depriving him of his right to counsel.

I. Applicability of the procedural provisions of the new code. Because the offense charged in this case occurred before January 1, 1978, the procedural provisions of the revised criminal code were inapplicable unless defendant requested and the court approved their use. § 801.5(1), The Code 1979. The record shows the court may have applied the new provisions based on a finding defendant impliedly elected to use them by filing a pretrial motion under one of the rules. See State v. Kantaris, 280 N.W.2d 389, 393 (Iowa 1979). Assuming, without deciding, that the court erred in applying the new rules, the record shows defendant suffered no harm through their use.

He complains he was prejudiced because he was compelled to give reciprocal discovery under Iowa R.Crim.P. 12 and 13 and because the jury was permitted to take notes pursuant to rule 18(5)(e). The only reciprocal discovery he was compelled to provide was a list of defense witnesses expected to be called at trial. See rule 12(3). Defense subpoenas had been ordered for most, if not all, of those witnesses before the disclosure, and they were witnesses the State knew about. Defendant could not have been harmed by having to disclose information the State could readily obtain through other means. Nor, even assuming jurors did not have the right to take notes before adoption of rule 18(5)(e), does the record show defendant suffered any detriment from juror notetaking.

II. Appointment of an investigator. The record contains a motion by defendant for appointment of an investigator but does not show any ruling or failure of the court to rule after request for ruling. Therefore no error has been preserved on this issue. State v. Schiernbeck, 203 N.W.2d 546, 547 (Iowa 1973).

III. Defendant's presence at depositions. On April 9, 1980, the trial court conducted a hearing on various pretrial motions. During the proceeding, defense counsel notified the court that defendant, who was present, wished to remain with his attorney while depositions of various department of criminal investigation (DCI) agents were taken. Upon the State's resistance on security grounds, the court denied defendant's request. In contending the court erred, defendant relies on his right to confront witnesses under U.S.Const.amend. VI and XIV. He did not urge a constitutional basis for his presence in the trial court and cannot do so for the first time here. Moreover, we have no occasion to decide under this record whether a deposition is a stage of trial for purposes of Iowa R.Crim.P. 25(1).

The issue of a defendant's right to be present at depositions has been addressed in other jurisdictions with varying results. See United States v. Benfield, 593 F.2d 815 (8th Cir. 1979); State v. Dolen, 390 So.2d 407 (Fla.Ct.App.1980); Chapman v. State, 302 So.2d 136 (Fla.Ct.App.1974); Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975); Collins v. State, 12 Md.App. 239, 278 A.2d 311 (1971), affirmed 265 Md. 70, 288 A.2d 163 (1972). In the present case, it appears only one State deposition was used against defendant at trial, and it was taken April 8, 1980, the day before defendant requested to be present at depositions. Thus no deposition taken subsequent to defendant's request was used against him, and he personally confronted all the witnesses except the one whose deposition was taken before his request. Courts that have decided the confrontation issue have treated such circumstances as significant. See, e.g., Benfield, 593 F.2d at 821; Dolen, 390 So.2d at 409. Because error was not preserved, we do not decide the issue here.

IV. The search and seizure issue. At the time of the offense, defendant, then 19 years old, resided in the Keota home of his father. He occupied a room in the basement. With the consent of defendant's father, the sheriff and a DCI agent searched defendant's room during the evening of the day of the offense and seized a pair of boots found in his closet. Defendant filed a pretrial motion to suppress the evidence which, after hearing, the trial court overruled.

Defendant attacks the ruling on two grounds. He alleges his father lacked authority to consent to a search of his living quarters, and he alleges the seizure required separate justification that was also lacking.

The father's authority to consent depends on whether he had common authority over defendant's living area. Such authority stems from "mutual use of the property by persons generally having joint access or control for most purposes." United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249 (1974). The father never went to the basement because of knee problems, but he owned the home and insisted no one could keep him out of any part of it. Defendant did not pay rent and occupied the home as an ordinary family member. In these circumstances, we find that defendant's father had authority to consent to the search of defendant's room. See State v. Kelly, 284 N.W.2d 236, 238 (Iowa 1979); 2 W. La Fave, Search and Seizure: A Treatise on the Fourth Amendment § 8.4 at 733 (1978).

We believe the seizure was also justified. Defendant was a suspect in the break-ins and the murder. The officers wished to obtain the boots he wore in order to examine them for mud and broken glass that might tie defendant to the break-ins. Thus the boots were "evidence" that legitimately were subject to seizure under principles delineated in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 300-10, 87 S.Ct. 1642, 1646-51, 18 L.Ed.2d 782, 788-94 (1967). When officers find evidence they are lawfully searching for, they are entitled to seize it. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 693 (1969). The situation is to be distinguished from the line of cases applying the doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Coolidge doctrine, like the one involved here, may concern a seizure of evidence while a search is in progress. See State v. Dickerson, 313 N.W.2d 526, 531 (Iowa 1981). The difference, however, is that the Coolidge rationale applies to seizure of incriminating items that officers come across inadvertently during an otherwise justified intrusion. For example, a Coolidge situation would have arisen in the present case if the officers, while engaged in the search for the boots, came across another incriminating item for which they had not been searching. See Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583.

Because the search here was lawful and the boots were a proper subject of seizure, the seizure was justified. See United States v. Wright, 564 F.2d 785, 790 (8th Cir. 1977); Maxwell v. Stephens, 348 F.2d 325 336-38 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965); People v. Chism, 390 Mich. 104, 128-40, 211 N.W.2d 193, 201-10 (1973).

The trial court did not err in overruling the motion to suppress.

V. Admissibility of the boots. At trial defendant objected to admissibility of the boots on the ground of "insufficient foundation linking these boots to any of the relevant issues in the case." The court overruled the objection. In challenging this...